Opinion
No. 26742.
February 27, 1928. Suggestion of Error Overruled October 8, 1928.
1. NEGLIGENCE. "Invitation" is inferred where there is mutual advantage, while "license" is inferred where object is pleasure to person using it.
An invitation to go on premises of another is inferred where there is some common interest or mutual advantage, while license is inferred where object is mere pleasure or benefit to person using it (citing Words and Phrases, Second Series, "Invitation").
2. AUTOMOBILES. Motorist injured in collision with switch stand guards while traveling on roadway on railroad's premises was "licensee," and railroad was not liable.
Automobile passenger injured when automobile collided with railroad switch stand guards, located on or near roadway on railroad's premises paralleling railroad tracks, which way was graveled and was made for people desiring to load and unload goods, was a "licensee" and not an invitee, and, since she was not willfully or wantonly injured by any act or failure to act on part of railroad company, it was not liable.
APPEAL from circuit court of Warren county, HON. E.L. BRIEN, Judge.
Brunini Hirsch, Harry K. Murray, and James D. Thames, for appellant.
We are asking for an affirmation of the liability of the railroad company and the reversal and remanding of this case to settle the amount of the damages. The two instructions refused Mrs. Robertson, should have been granted, and their refusal resulted in the small verdict in this case. Those two instructions are in the words following:
(a) "The court instructs the jury to find for the plaintiff and to assess her damages at such sum as the evidence in the case shows she has sustained" and, (b) "The court instructs the jury that the fact that the said embankment was constructed at the request of the citizens of Utica and the fact that it was constructed to take care of the shipment of vegetables and other truck products from Utica do not in the slightest degree constitute a defense to this action."
Was the fact that the embankment was constructed at the request of citizens of Utica, to take care of the shipment of vegetables and other truck products from Utica, a defense to this action in the slightest degree? To ask the question is to answer it. To say the least this defense carried great weight with the jury in the amount of damages it awarded.
Taking the appeal of the railroad company as a cross-appeal, we submit that it was argued away from the facts, and the law of this case. The railroad company, appreciating that it was mistaken in contending that Mrs. Robertson was a trespasser, falls back on the idea that she might be a "bare licensee." Several cases are cited where the facts show that the complaining party was a bare licensee, and the railroad company quotes from Allen v. Y. M.V.R.R. Co., 111 Miss. 276. That part of the opinion which it quotes is fatal to its position. We offer it to sustain our position, to-wit: That whether or not that part of Depot street on the embankment and where the switch stand and guards were placed was railroad property or was property of the public. The facts in this case show that the railroad company at least impliedly invited, if it did not expressly invite, induce and lead the public generally to come upon its premises. The fact is that the railroad company never, at any point in the examination of the witnesses for the plaintiff or the defendant, undertook to show that it did not impliedly invite the public to use that part of the street or highway which was on the embankment, and every witness who testified relative to that roadway, showed that it was constantly and daily used by the public without let or hinderance. We have no hesitation in saying that the conduct of the railroad company in this instance amounted to more than an invitation to the public to use this street, and that it was, in fact, a dedication of this street to the public use. See Lepnick v. Gaddis, 72 Miss. 200, 16 So. 213; 26 L.R.A. 686, 48 Am. St. Rep. 547.
Hirsch, Dent Landau, Chas. N. Burch and H.D. Minor, for appellee.
The court will observe that the plaintiff plants her right of recovery on the theory that defendant had placed an obstruction in a highway or street. The evidence discloses without conflict that the way on the dump is in no sense a highway or street. See 7074, Hem. Code 1917; Adkins v. G. S.I.R.R. Co., 117 Miss. 131; Covington Co. v. Collins, 92 Miss. 330; A. W.R.R. Co. v. A.B. A.R.R. Co. (Ga.), 54 S.E. 736; Wiggins v. Skeggs (Ala.), 54 So. 756.
There is no evidence to disclose that the defendant knew that this was being used occasionally or generally by the public except for railroad purposes. There is no evidence that the railroad expressly or impliedly granted a license to the public to use this way in going from one part of the street to another part of the same street. The plaintiff's husband perhaps made a mistake, when he left a well graveled and lighted street, forty feet wide, and drove on this private way on this embankment, without the slightest knowledge of its condition, and without invitation or inducement, to serve his own purpose. Under this state of facts, we submit, that both plaintiff and her husband were trespassers. Byars v. Davis, 131 Miss. 13; 20 R.C.L. 64.
If we are mistaken in our contention that plaintiff and her husband were trespassers, then, we submit, they were bare licensees, and defendant owed them no duty except not to wilfully or wantonly injure them. I.C.R. Co. v. Arnola, 78 Miss. 787; R.R. Co. v. Cox, 132 Miss. 571; Rabe v. Ch. O.R.R. Co., 227 S.W. 166; Pollock on Torts, sec. 426; Indian Ref. Co. v. Mobley, 134 Ky. 822, 24 L.R.A. (N.S.) 467, 121 S.W. 657; Allen v. Y. M.V.R.R. Co., 111 Miss. 276; Redigan v. B. M.R.R. Co., 14 L.R.A. 276.
Mere creation of way implies no invitation to plaintiff to use way. See 29 Cyc. 454; Montgomery v. R.R. Co., 72 S.W. 617; Bennett v. L. N.R.R. Co., 102 U.S. 585; Cleveland Ry. Co. v. Powers, 88 N.E. 1073; Plummer v. Dill, 31 N.E. 128; Dixon v. Swift, 56 A. 761; 20 R.C.L. 69. The mere fact that the defendant did not see fit to keep travellers off the premises did not give them a right of way over such premises. 22 R.C.L. 936.
Argued orally by Jno. Brunini, for appellant, and R.L. Dent, for appellee.
Mrs. Estelle Robertson, plaintiff in the court below, appellant and cross-appellee here, filed her declaration to recover damages alleged to have been sustained by her as the result of a collision of a Ford car with a railroad switch stand and the guards thereof, located on or near a roadway paralleling defendant's cross-appellant and appellee here, house track in its railroad yards, in the town of Utica, Hinds county, Miss. She alleged that the switch stand and the guards thereof constituted an obstruction in the street of the town. Defendant interposed plea of general issue with notice of special matter, the circumstances under which the house track and way were constructed. The case was submitted to a jury, and there was a verdict and judgment for the plaintiff, Mrs. Estelle Robertson, in the sum of two hundred dollars. Mrs. Robertson appealed, and thereafter the railroad company filed what is termed a "cross-appeal." Mrs. Robertson contends the case should be reversed and remanded because she was entitled to a peremptory instruction on the question of damages, which the court below had refused, thereby diminishing her damages. The railroad company contends here that it was entitled to a peremptory instruction because the plaintiff, at the time, was a licensee or trespasser, and not an invitee, and that the railroad company owed her no duty save not to willfully and wantonly injure her. Other causes for reversal are assigned, but they will not be noticed here for the reason that we have reached the conclusion that the case may be disposed of on the issue thus sharply presented.
The facts are these: Mrs. Robertson and her husband and their children, together with a sister, traveled in a Ford coupe to Hazlehurst on Sunday, October 31, 1926, on the way passing through Utica. On the return trip that evening when within five or six miles of Utica the lights of their car were discovered to be dim, and when they reached Utica they wanted a mechanic to remedy the lights. They left the main highway, entering the route to Vicksburg, and had a boy conduct them to the home of a mechanic. They traveled over Main street running east and west until they came to Depot street, which runs north and south parallel to the railroad track. Depot street begins at Main street and runs south several blocks to a cross street called White Oak street. There was another route by which this trip could have been accomplished. The Robertsons stopped in Main street at the north end of Depot street, there making inquiry for an automobile mechanic, securing a boy to conduct them, who rode on the running board. They stopped near White Oak street, and Mr. Robertson, the driver of the car, and the boy crossed the railroad and talked with a mechanic. The Robertson car was headed north. At the point where it was stopped, there was an elbow. The street he had traveled was from twenty-seven to forty feet wide, and at the point where he stopped the elbow circled toward the railroad house track, and he drove thereon. This house track was on the east side of Depot street and west of the station at Utica. Alongside the house track there was a graveled space with a clearance of about nine to twelve feet on which parties specially dealing with the railroad were accustomed to load and unload freight, and especially vegetables during the vegetable season of the year. This house track and this way alongside it were on a dump variously estimated to be from four to nine feet higher than Depot street proper. Robinson drove alongside this track up onto this dump and suddenly came in contact with an iron rail which had been embedded in the ground in order to protect parties driving along the railroad track from driving into the switch, which was three and one half to four feet out from the iron rails, and there were nine feet or more from these rails to the edge of the dump. These rails or guards protruded above the ground about ninteen inches, one on either side, north and south. Mr. Robertson, while watching the dump, collided with these guards, and Mrs. Robertson suffered injuries alleged to be permanent, and there was injury to the car.
It was shown that the railroad company in 1922 constructed this dump or embankment, and built thereon its house track for the convenience of vegetable growers and shippers of vegetables of Utica and its vicinity, upon a a petition of citizens. It was graveled, and the way was made for those people who desired to load and unload to drive alongside the track which extended seven or eight hundred yards parallel with the railroad right of way. On the opposite side from the railroad it had a sign, "This is railroad property." It was shown that this collision occurred about eleven o'clock at night, and that the night was dark and foggy; that Robertson had a conversation with the mechanic in regard to having his lights repaired; that he knew he was upon a dump because he was watching that side as there were erosions there. The railroad company was shown to have kept its yards lighted in the spring during the vegetable season, but the yards were not lighted, nor was the depot kept open at night at other times, nor was there any light on this embankment at the time the plaintiff was injured. It was further shown that the public, without any protest from the railroad company, indiscriminately drove upon this dump, driving over same from the north at the intersection of Main and Depot streets and running south seven or eight hundred yards. It was shown that the street proper was forty feet to the west of the dump, and that this street was kept lighted. Just immediately preceding the injury to plaintiff, her husband had driven upon this wide street, stopping in the elbow, and headed their car near the driveway upon the dump rather than turn back whence they came and go over the identical route.
It is clear from the evidence that the primary purpose of this graveled dump and the house track thereon was for railroad purposes. It is not contended that plaintiff, nor her husband, nor any occupant of the Ford coupe was intending to transact any business with the railroad company, or that there was any reason for driving from the wide street to the narrow place which we have described. The Robertsons, on that occasion, were not paying any kind of visit, for pleasure or profit, to the railroad company. They were strangers to the town of Utica. The record fairly discloses that they did not know the directions nor the uses to which the various ways were put, nor did they know that people had indiscriminately used this way who saw fit to do so. It is undisputed that the railroad company was the owner of the property on which the injury occurred.
We think it is fairly deducible from the evidence that the town had exercised dominion over roadway proper. The railroad had given the town the gravel for Depot street, and the town, at its own expense, had put it on the street, and had always, for a long time, exercised municipal control of it, kept it repaired, etc., so that it is unimportant as to where the actual ownership of the land was vested.
To state these facts is to decide the case. The defendant railroad company was entitled to a peremptory instruction, and the plaintiff was not entitled to recover in this case. Mrs. Robertson was not an invitee of the railroad company, under the circumstances which we have detailed. Common sense must have dictated that it was erroneous to drive upon the dump alongside the railroad track, leaving the safe way they had traveled over, as they were intending to go back whence they came in order to take the route to Vicksburg.
But counsel for Mrs. Robertson insists that they were allured or enticed to go upon this dump because it was graveled. Could it be said that, because it was graveled, it held out temptation to induce parties to travel thereon, or that they had an invitation to travel on the railroad's right of way simply because of the fact that it was kept in order and in good traveling condition? Temptation is not always invitation. Of their own volition, for reasons not satisfactorily explained to us, these people drove on this dump.
In Words and Phrases, Second Series, vol. 2, "Invitation," pp. 1190-1192, it is stated that temptation may be either express or implied. An examination of the cases cited discloses that invitation is inferred where there is some common interest or mutual advantage, while license is inferred where the object is mere pleasure or benefit to the person using it.
We think the case of Illinois Central Railroad Co. v. Arnola, 78 Miss. 788, 29 So. 768, 84 Am. St. Rep. 645, is directly in point, and that the occupants of the Ford coupe here were mere licensees; that they were not willfully of wantonly injured on this occasion by any act or failure to act on the part of the railroad company; and that it was not liable. Also, see Yazoo Railroad Co. v. Cox, 132 Miss. 571, 97 So. 7, and Allen v. R.R. Co., 111 Miss. 267, 71 So. 386.
Plaintiff was a licensee and not an invitee, and we are of opinion that the peremptory instruction should have been given for the railroad company; that there was no liability on the railroad company.
The judgment of the court below is reversed and judgment will be entered here for the cross-appellant, the railroad company.
Reversed and judgment here for cross-appellant.